Chelo’s disputes city action to limit live entertainment

With yet more snow in the forecast, languid summer nights with the serenade of crickets outside an open window seem to be nothing more than a dream.

Yet, the issue of live outdoor entertainment at Chelo’s Waterfront Bar and Grill never really cooled off and with the company contesting citations that it violated the city’s noise ordinance, it’s getting hot again.

The city was in Superior Court yesterday to answer Chelo’s claim that by reducing the hours for bands to perform outside, the Board of Public Safety did not follow procedure and hindered its business.

At its Feb. 11 meeting, the board voted to maintain the hours it set at the end of the 2013 season that live entertainment would end at 10 p.m. Thursday, Friday and Saturday and at 8 p.m. on Sunday. Chelo’s license had previously allowed them to have live entertainment until 11 p.m. on Thursday, Friday and Saturday.

Under city ordinance, noise is considered a nuisance if it exceeds 50 decibels between the hours of 10 p.m. and 8 a.m. Between 8 a.m. and 10 p.m. the level is 60 decibels.

The complaint names City Finance Director Ernest Zmyslinski and the three members of the Board of Public Safety, Leslie Walaska Baxter, James Paolucci and Thomas McGovern, as defendants. It asks the court that Chelo’s be given “the right to an impartial and meaningful opportunity to be heard on the noise violation in advance to the board taking any action on the license, other than its yearly renewal.”

The court is also asked to award Chelo’s attorneys’ fees and other expenses relating to the court action.

From the vantage of Jan Kovan, who lives almost a half-mile north of Chelo’s on Reeland Avenue off Post Road, it’s time to reduce the volume.

“Like every year, they’re doing something else [to lessen the noise] and it doesn’t work. The fact is, it doesn’t matter any more, they have to turn the music down,” she said in a telephone interview Tuesday.

Kovan said she can hear “every word” of the lyrics sung by bands at Chelo’s. And, as long as the weather is good, she said she gets the music every summer weekend, up until the end of the season in September.

It has been a long face-off between Chelo’s and its neighbors, both in Cowesett and across Apponaug Cove on Cedar Tree Point in Nausauket, going back five years. In response to complaints, Chelo’s has spent $60,000 to mitigate the sound, estimates their attorney John Mancini. The company built a band shell to contain the sound and installed a sound system, which it, not the bands, would regulate. This year, Mancini said, Chelo’s plans to install an acoustical curtain to further reduce the sound.

Mancini characterized the issue as a “battle between Chelo’s and a few neighbors.” Nonetheless, he said, Chelo’s isn’t discounting concerns raised.

“Chelo’s will do what it can to ensure neighbors are happy,” he said.

In addition to addressing the noise volume, he said Chelo’s is careful about selecting performers to ensure the lyrics of songs and their actions on stage are appropriate.

Mancini explained the basis of the Superior Court complaint is that the board, in reducing the hours from 11 to 10 p.m. on Sept. 17 in response to allegations that the noise exceeded the limit set by its license on Aug. 31, denied Chelo’s procedural due process. The suit notes that the noise violation issued on Aug. 31 states “that in order to contest the citation, an appearance must be made in the City’s Municipal Court on Oct. 17, 2013.”

The complaint argues Chelo’s was entitled to be heard at an impartial hearing at Municipal Court on the noise violation in advance to the board hearing during which it took action on the license.

Assistant City Solicitor Diana Pearson said yesterday’s scheduling conference before Superior Court Justice Sarah Taft-Carter was continued for two months. She expected the Municipal Court hearing would proceed within the month.

Pearson said Chelo’s “is in a unique situation in that they are somewhat in an amphitheater.”

With a hill behind them, the sound travels up and doesn’t dissipate, she said.

She maintained that the board took appropriate action and did not fine Chelo’s for the noise violations, which is the jurisdiction of the Municipal Court.

She sees the situation as an “unfortunate confluence of the interests of the resident and business” and one that is likely to continue in the months ahead.